Challenges to DOMA have Only Begun

Gay rights activists outraged by the Obama Administration's disingenuous defense of the Defense of Marriage Act (DOMA) in a pending California case could be vindicated by another challenge to DOMA recently filed by the Boston based, Gay, Lesbian, Advocates & Defenders (GLAD, of which I am a donor.) Gill v Office of Personnel Management mounts a strong equal protection challenge to DOMA's definition of marriage as a union between a man and a woman, as it applies to married, same sex couples in Massachusetts who have been denied the federal benefits and entitlements enjoyed by their married, heterosexual neighbors.

In other words, unlike Smelt v U.S., (the California case,) Gill v OPM is not a facial challenge to DOMA - a claim that the law is unconstitutional on its face. The plaintiffs in Gill are 8 couples and 3 surviving spouses, legally married in Massachusetts, whose applications for marital benefits have been denied under DOMA. On the facts, the Justice Department cannot claim what it claimed in Smelt -- that the plaintiffs have not been denied any actual benefits for which they have applied. On the facts, the Department will also be hard pressed to repeat the ridiculous assertion that DOMA represents "federal neutrality toward a new form of marriage."

As Gary Buseck, GLAD's legal director, explains (and I paraphrase): Massachusetts issues one marriage license to gay and heterosexual couples alike, creating one class of married people. DOMA takes that class and splits it in two, extending a broad array of important rights and benefits to heterosexual couples and denying them to same sex couples.

This denial of equal benefits to gay couples was promulgated in the interests of tax justice, according to the Administration. (Really.) DOMA simply "declines to obligate federal tax-payers in other States to subsidize a form of marriage their own States do not recognize." This suggests that federal taxpayers have a right not to pay for programs and policies that they or their states oppose, which means I'm not the only American due a huge refund.

The Administration's illogical, amateurish defense of DOMA only highlights the many ways in which it's indefensible. Reason defeats any effort to dispute the obvious fact that DOMA singles out gay people for disparate treatment under law. Even a famously nuanced thinker like Obama would have trouble explaining how DOMA's definition of marriage qualifies as neutrality toward gay people or how it ensures fair taxation. As the GLAD press release states:

"DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of "neutrality" ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality."

Gill v OPM was filed in March 2009, and GLAD is awaiting a federal response. Meanwhile, Obama has not retracted his alleged support for DOMA's repeal, which, according to his Justice Department would represent a repeal of federal fairness and neutrality. The fight over DOMA should be interesting.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.